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nitrogen dioxide and acid-rain forming sulphur dioxide), and it avoids serious water

pollution. Furthermore, the adverse impacts caused by mountaintop mining and stripmining of coal, including acid mine drainage and land subsidence are avoided, and thenegative effects of nuclear power, including radioactive waste disposal, security risks,and nuclear proliferation risks, are not created. Finally, wind power can have a long-term positive impact on biodiversity by reducing the threat of climate change the

greatest threat to biodiversity. At the same time, the construction and operation ofboth onshore and offshore wind turbines can result in potential negative localenvironmental impacts on birds, bats and cetaceans, landscapes, sustainable land use(including protected areas), and the marine environment.4

The focus of this article is on biodiversity-related international agreements andtheir relationship to wind energy development. The article seeks to summarize themajor biodiversity-related international agreements, to analyze the implications ofthese agreements on wind energy development, and to recommend actions that seek toharmonize biodiversity, climate protection, and wind development goals.

In most instances, the text of biodiversity-related multilateral agreements andinstruments and the decisions, resolutions or recommendations adopted by theirdecision-making bodies do not pose a direct barrier to the development of windenergy. It is generally the implementation of the obligations under these instruments,i.e. the concrete policies and measures adopted by parties carrying out these

obligations that can create potential barriers to the development of wind energy. Themixture of policies and measures adopted by a country in implementing aninternational agreement will depend on that countrys particular circumstances.Therefore, it is difficult to generalize about the positive and negative effects of aninternational agreement at the national level.

There are, however, a few international agreements where direct references tothe risks posed to biodiversity by the development of wind farms have given rise toobligations on parties. These agreements are most notably the Convention on

Migratory Species and Wild Animals (CMS or the Bonn Convention) and theAgreement on the Conservation of Populations of European Bats (EUROBATS).

Section II of this paper will examine the impacts of the direct provisions in the CMSand EUROBATS agreements on the development of wind energy. Section III surveysother international legal instruments which may also impact the development of windenergy. Section IV provides conclusions and recommendations.

4 It should be noted that experts also have identified some local positive impacts of wind turbines,including: new bird species appearing near wind farms because the area is excluded from hiking andhunting; revitalization of fish stocks in some offshore areas because of prohibitions on commercial

fishing and because the turbine foundations can serve as natural reefs.


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II. CMS, EUROBATS and Wind TurbinesWhile it is acknowledged that the potential impacts of wind energy

development on biodiversity5 need to be examined further, the information that iscurrently available has been deemed sufficient by at least two of the decision-makingbodies of international biodiversity-related agreements to impose specific obligations

on parties to the agreements. These are the Convention on Migratory Species andWild Animals (CMS) and the Agreement on the Conservation of Populations ofEuropean Bats (EUROBATS).

CMS Article 3.4(b) requires parties that are Range States of a migratory

species to prevent, remove, compensate for or minimize, as appropriate, the adverseeffects of activities or obstacles that seriously impede or prevent the migration of thespecies. The question of whether wind farms could constitute an activity thatseriously impedes or prevents the migration of species has clearly been answered inthe affirmative, as the recommendations discussed below will show.

The Conference of the Parties (COP) of the CMS recognizes that climatechange may significantly affect the behaviour, distribution and abundance ofmigratory species and may change the ecological character of their habitats.6 At itsfifth meeting, the CMS COP, in Recommendation 5.5 (Climate Change and itsImplications for the Bonn Convention), requested the CMS Scientific Council to

review the results of past and present scientific work on the ecological and othereffects of climate change, assess the relevance and importance of such work for theconservation of migratory species, review existing scientific links between the CMSand other bodies undertaking work in this area, formulate proposals for improving andstrengthening such links, and report its conclusions and make recommendations to thenext meeting of the Scientific Council.

While climate change can be a major threat to migratory species, the measurestaken to mitigate climate change themselves can pose a threat to these species. Thus,

as a result of the mandate in CMS Recommendation 5.5, the CMS Scientific Councilrecommended the adoption of a resolution on wind turbines and migratory species at

the seventh meeting of the CMS COP.7 Resolution 7.5 (Wind Turbines and MigratorySpecies) acknowledges the environmental benefits of wind energy, especially foraddressing climate change, as well as the significance of reducing climate change forthe long-term survival of migratory species.8 Nevertheless, the resolution notes thatwind turbines, especially those in marine areas, represent a new method of large-scale

energy production whose actual effects on nature and on the different components ofbiodiversity cannot be fully assessed or predicted at present.

9The resolution then

goes on to list some of the possible negative impacts of wind turbines on migratory

5 See, for instance, Windfarms and bird: an analysis of the effects of wind farms on birds, andguidance on environmental assessment criteria and sit e selection issues, (CMS/ScC12/Inf.27)available from the secretariat of the Convention on Migratory Species.6 CMS Resolution 8.13, Climate Change and Migratory Species, 4th prefatory statement.7 The seventh meeting of the COP of the CMS was held in Bonn, Germany from 18 to 24 September2002.8 6th prefatory clause, CMS Resolution 7.5, available athttp://www.cms.int/bodies/COP/cop7/proceedings/pdf/en/part_I/Res_Rec/RES_7_05_Wind_Turbine.pdf9Id., 7th prefatory clause.


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species of mammals and birds, as well as on their food sources and habitats, including

the following:

Destruction or disturbance of permanent or temporary feeding, resting andbreeding habitats;

Increased collision risk for birds in flight, noting especially the potential riskthat several hundred offshore wind turbines with heights of up to 150 metersmay present as obstacles in flyways;10

Risks arising from electric and magnetic fields of connecting power cables;and

Emission of noise and vibrations into water.11In view of these concerns, CMS Resolution 7.5 calls upon parties

12

to take thefollowing specific actions:

To identify areas where migratory species are vulnerable to wind turbines andwhere wind turbines should be evaluated to protect migratory species;

To apply and strengthen, where major developments of wind turbines areplanned, comprehensive strategic environmental impact assessmentprocedures to identify appropriate construction sites;

To evaluate possible negative ecological impacts of wind turbines on nature,particularly migratory species, prior to deciding upon permission for windturbines;

To assess the cumulative environmental impacts of installed wind turbines onmigratory species; and

To take full account of the precautionary principle13 in the development ofwind turbine plants, and to develop wind energy parks taking account ofenvironmental impact data and monitoring information as it emerges and

taking account of exchanges of information provided through the spatialplanning process.14

Relevant intergovernmental organizations as well as the European Communityand the private sector also are invited to cooperate with the CMS in efforts to

minimize the possible negative impacts of offshore wind turbines on migratoryspecies.15

10Id., 12th prefatory clause.11Id., 9th prefatory clause.12 As at 1 December 2005, CMS had 95 Parties.13 CMS itself does not have a specific provision on the precautionary principle. Principle 15 of the RioDeclaration on Environment and Development adopted at the United Nations Conference onEnvironment and Development (UNCED) that took place from 3 to 14 June 1992 in Rio de Janeiro,Brazil, states:

In order to protect the environment, the precautionary approach shall be widelyapplied by States according to their capabilities. Where there are threats to serious orirreversible damage, lack of full scientific certainty shall not be used as a reason for

postponing cost-effective measures to prevent environmental degradation.

14Id., paragraph 1.15Id., paragraph 3.


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The CMS COP also instructed its Scientific Council to assess existing andpotential threats from offshore wind turbines in relation to migratory mammals andbirds (including their habitats and food sources), to develop specific guidelines for theestablishment of these facilities, and to report to the COP at its next meeting. TheWorking Group on Threats Windfarms & Powerlines of the CMS ScientificCouncil, which met from 16 to 18 November 2005, did not complete the proposed

guidelines for submission to COP 8, which took place from 20 to 25 November 2005in Nairobi, Kenya.16 Therefore, these guidelines will have to be presented foradoption at the next CMS COP, which is not expected to be convened before 2008.

The issue of migratory species and wind farms, however, did find its way into

CMS Resolution 8.18, Integration of Migratory Species into National BiodiversityStrategies and Action Plans and into On-Going and Future Programmes of Workunder the Convention on Biological Diversity (CBD). Annex II lists information onmeasures to regulate or manage processes or activities that represent a significantadverse effect on migratory species and provides details of relevant impact assessment

measures designed to avoid or minimize adverse impacts of proposed projects onmigratory species. Potential threats from power transmission lines and wind farmsare listed among the categories of information on migratory species to be consideredin the development of a national biodiversity strategy and action plan under the CBD.In addition, CMS Resolution 8.22, Adverse Human Induced Impacts on Cetaceans,acknowledges that human induced impacts on cetaceans are increasing.17

EUROBATS, one of the agreements under the CMS, also has devoted aspecific resolution to wind turbines. Like CMS Resolution 7.5, EUROBATSResolution No. 4.7 (Wind Turbines and Bat Populations) adopted by the EUROBATSMeeting of the Parties (MOP) recognizes the environmental benefits of wind energy.18

It notes, however, that the actual effects on bats of potential large-scale developmentof wind turbines have not yet fully been assessed or predicted and that there isexisting evidence of mortalities of bats from wind turbines.19

The possible negative impacts of wind turbines on bat populations, their preyand habitats identified under EUROBATS Resolution 4.7 are as follows:

Destruction and disturbance of habitats and commuting corridors; Destruction and disturbance of roosts; Increased collision risk for bats in flight; and Risks from emission of ultrasound noise.20In light of the limited data available on bat populations potentially affected by

wind turbines and the wish to minimize the possible adverse effects of such

16 See action no. 2.31.10 and i ts corresponding indicators and milestones, Draft StrategyImplementation Plan 2006-2011 of the CMS Scientific Council, available athttp://www.cms.int/bodies/ScC/13th_scientific_council/pdf/en/ScC13_Doc_03_Draft_Strategy_ImpPlan_2006_2011_E.pdf A copy of said draft guidelines are currently not available online.17 11th prefatory clause.18 Resolution No. 4.7, Wind Turbines and Bat Populations, Annex 10 to the Record of the 4th Sessionof the Meeting of Parties Sofia, Bulgaria, 22 24 September 2003 available athttp://www.eurobats.org/documents/pdf/MoP4/Record_MoP4_complete.pdf19Id., 5th and 6th prefatory clauses.20Id., 7th prefatory clause.


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developments on bat populations, the EUROBATS MOP has requested its AdvisoryCommittee to assess the evidence of the impacts of wind turbines on bat populationsand, if appropriate, to develop guidelines for assessing the potential impacts on batsand for the erection of wind turbines in accordance with the ecological requirementsof bat populations.21

The Advisory Committees Inter-sessional Working Group (IWG) on WindTurbines and Bat Populations presented draft guidelines for the planning of windfarms, including the assessment of sites where wind turbines can be placed, at theAdvisory Committees 11th meeting held in Luxembourg from 8 to 10 May 2006. 22Comments on the draft guidelines were requested by 15 June 2006,23 and a final

version of the guidelines was presented to the fifth meeting of the EUROBATS MOPheld in Slovenia from 4 - 6 September 2006.24

The IWG report and guidelines have been annexed to EUROBATS DraftResolution 5.6 Wind Turbines and Bat Populations.25 The Preamble of the Draft

Resolution begins by [n]oting the importance that wind energy has in theimplementation of the Kyoto protocol to reduce CO2 emissions in context ofcombating climate change. The substantive provisions of the Draft Resolution urgeParties and Range States to:

1. Raise awareness of the impacts that wind turbines might have on batpopulations;

2. Raise awareness of the existence of some unsuitable habitats or sites for theconstruction of wind turbines at a local, regional and national scale;

3. Make developers of wind energy plants aware of the necessity of supportingresearch and monitoring;

4. Recognise the necessity to find suitable methods for assessing bat migrationcorridors;

5. Adopt and implement the document Wind Turbines and Bats: Guidelinesfor the planning process and impact assessment attached as Annex 1.26

The primary purpose of these guidelines is to raise awareness among developers

and planners of the need to consider bats and their roosts, their migration routes andfeeding areas when they are assessing applications for wind turbines. 27 Theguidelines are meant to be voluntary and assist in the planning and impact assessment

21Id., paragraph 1.22 Doc.EUROBATS.AC11.15.Rev.1,available at,http://www.eurobats.org/documents/pdf/AC11/Doc_AC11_15_Rev1_ReportWindturbines.pdf.23See 11th Meeting of the Advisory Committee City of Luxembourg, Luxembourg, 8 10 May 2006Record of the Meeting (EUROBATS.AC11.Record) p. 12, available a,thttp://www.eurobats.org/documents/pdf/AC11/AC11_Record.pdf24See Annex II of the Record of the Meeting of the 10th meeting of the EUROBATS AdvisoryCommittee (EUROBATS.AC10.Record.Annex2),available at,http://www.eurobats.org/documents/pdf/AC10/AC10_Record_Annex2(IWGreports).pdf25 Doc.EUROBATS.MoP5.12,available at,http://www.eurobats.org/documents/pdf/MoP5/PDF/Doc_MoP5_12_DraftRes5_6_Rev_1_WindTurbines.pdf.26Id.27Id.


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processes to reduce the impact of wind turbines on bats. The publication ofResolution 5.6 in its final form is expected later in 2006.

These guidelines also have been identified by the IWG as a potentialcontribution by EUROBATS to the CBD/CMS Joint Work Programme (JWP) from2006 onwards. Thus, the JWP, which was welcomed by the Conference of the Parties

to the CBD at its eighth meeting in March 2006, could be the vehicle by which theapplicability of whatever guidelines are adopted by EUROBATS could be extended toa significantly larger group of parties.28

Until the task of developing guidelines is completed, parties and Range States29

are asked to take full account of the precautionary principle in the development ofwind farms and to take account of bats in planning processes relating to the siting ofwind turbines, especially along migration routes and in areas of particular value to batpopulations.30 Parties and non-party Range States are also encouraged to initiate andsupport further investigations and research on the impacts of wind turbines on bats.31

Analysis of Barr iers

The first question to be asked is whether the provisions of the resolutionsdescribed above form barriers to the development of wind energy. If these provisionsare considered barriers, then the next question is whether they are unreasonable

barriers. Finally, we must ask how these barriers can be reconciled with the challengeof fully harnessing the potential of wind energy as an alternative to fossil fuelgeneration.

In most instances, the text of biodiversity-related multilateral agreements and

instruments and the decisions, resolutions or recommendations adopted by theirdecision-making bodies do not pose a direct barrier to the development of windenergy. It is generally the implementation of the obligations under these instruments(i.e. the concrete policies and measures adopted by parties carrying out these

obligations) that can create potential barriers to the development of wind energy. Themixture of policies and measures adopted by a country in implementing an

international agreement will depend on that countrys particular circumstances.Therefore, it is difficult to generalize about the positive and negative effects of aninternational agreement at the national level.

However, it should be noted that the wording of the wind farm-related

provisions in both the CMS and EUROBATS resolutions is very general in nature.Thus, when it comes to implementation, parties will have some latitude in interpretingtheir obligations under either the CMS or EUROBATS, especially relative to otherpolicy considerations and obligations under other international, regional or bilateral

28 As at 1 December 2005, EUROBATS had 31 Parties out of its 48 Range States. As at 31 January2006, the CBD had 188 Parties. It should be noted, however, that COP 8 restricts the collaborationamongst parties of the CMS and CBD. Only those countries party to both conventions are invited tocollaborate.29 These are defined as any State (whether or not it is a Party to the Convention [CMS]) that exercisesjurisdiction over any part of the range of a species covered by this Agreement. Article 1(c),EUROBATS. Annex I contains the bat species occurring in Europe to which the Agreement applies.30Id., paragraph 2.31Id., paragraph 3.


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agreements. Without the benefit of clarifying guidelines, which, in the case of theCMS, may not be available until 2008, the potential for uneven application of thewind farm provisions among parties may give rise to uncertainty. This uncertaintycould be minimized by a call for parties to provisionally apply any guidelinesdeveloped by the Scientific Council in the period before the next session of the COP.

Careful review and involvement by all stakeholders is particularly necessaryduring the development of the specific language of the guidelines implementing theCMS and EUROBATS agreements. Unduly burdensome guidelines may createbarriers to wind energy development if they are adopted in national policies byMember nations.

Based on arguments raised by opponents to wind farms in several nationalsiting controversies, it can be expected that certain language that seems balanced onits face could be construed by such opponents to impede wind energy development.Therefore, the wording of guidelines developed under CMS Resolution 7.5 and

EUROBATS Resolution 4.5 should be carefully crafted with the full recognition ofthis fact.

In order to avoid unreasonable barriers to wind energy, development ofconcrete implementing guidelines for CMS Resolution 7.5 should involve input fromall relevant stakeholders, including not only environmental groups and wildlife

experts from academia and government but also the wind industry. The specificlanguage included in guidelines to implement the following provisions of the tworesolutions is particularly important:

evaluation of possible negative ecological impacts of wind turbines onnature, particularly migratory species, prior to deciding upon permissionfor wind turbines (emphasis added);

assessment of the cumulative environmental impact of installed windturbines on migratory species; and

taking full account of the precautionary principle in the development ofwind turbine plants.

In addition, if vague or ambiguous language, such as that contained in theactual resolutions, is contained in the final guidelines, such language can expose winddevelopers to substantial delays and uncertainties and increased costs in permitting

projects. For example, wind developers can be expected to argue that theprecautionary principle favors the adoption of wind generation because it safeguards

the global environment from greenhouse gas emissions even though the completelocal environmental consequences of such wind generation are not fully known.However, opponents of wind energy have cited the same language of the

precautionary principle to argue for regional moratoriums on the construction of anyindividual wind farms until comprehensive regional studies and comprehensive

studies of the cumulative environmental impact of multiple wind farms can becompleted.

In other words, some wind farm opponents have urged national and stategovernments to reject permit approvals for any and all wind farms until extensive

additional study is completed on avian and wildlife impacts. Some have asserted that


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involve approaches that seek to minimize adverse impacts on avian species andwildlife through actions, such as careful siting based on pre-construction studies,retrofitting of power poles to prevent electrocution of birds, construction of turbineson taller towers (above flight paths), re-powering of older sites to use fewer (but moreefficient) turbines, and the emission of audible signals to birds and other species.

III. Potential Impact of Other International Instruments on Wind EnergyDevelopment

While the CMS and the EUROBATS agreements are the only two

biodiversity-related agreements which specifically consider wind farms in relation tothe protection and conservation of species, a number of more general provisions inother international legal instruments also may directly impact the development ofwind energy resources. This section surveys these instruments, which are organisedunder three broad headings:

(1) protection and conservation of species;(2) protection and conservation of habitats; and(3) assessment of impacts.

It should be noted that this analysis will not consider those international

agreements which may impact offshore wind installations outside of the threeinstruments agreed under the auspices of the CMS.36

Protection and Conservati on of Species

The following biodiversity-related agreements, including three concludedunder the auspices of the CMS, have provisions that could significantly impact thedevelopment of wind energy.

Convention on Bi ological Diversity(CBD, 1992)

The CBD is the central biodiversity-related agreement in the internationalarena. It was signed in 1992 at the United Nations Convention on Environment andDevelopment in Rio de Janeiro along with the conventions on climate change anddesertification. One of the CBDs primary objectives is the conservation of biologicaldiversity,37 which is accomplished either through in-situ38 or ex-situ39 means. One of

36 For a comprehensive analysis of international instruments relevant to offshore wind installations, seeS. Shaw, M.J. Cremers, G. Palmers, Enabling Offshore Wind Developments (European Wind EnergyAssociation - Brussels 2002). This report is often called the Sealegal Report. In addition, work onmarine and renewable energy issues is being completed separately under the auspices of the RenewableEnergy and International (REIL) Project.37 CBD, art 1, available at, www.biodiv.org.38 In-situ conservation is defined as the conservation of ecoystems and natural habitats and themaintenance and recovery of viable populations of species in their natural surroundings and, in the caseof domesticated or cultivated species, in the surroundings where they have developed their distinctiveproperties. CBD, art 2. The obligations of parties in respect of in-situ conservation are set out in CBD,art 8.39 Ex-situ conservation the conservation of components of biological diversity outside their naturalhabitats. CBD, art 2. The obligations of parties in respect of ex-situ conservation are set out in CBD,


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the tools for achieving in-situ conservation is the establishment of protected areas.These will be discussed further in the subsection that follows. The CBD has impactassessment requirements40 as well, which also are discussed below.

Parties to the CBD are required to integrate the conservation and sustainableuse of biodiversity into relevant sectoral or cross-sectoral plans, programmes and

policies.41 Parties also are required to integrate the conservation and sustainable useof biological diversity into national decision-making processes.42 Such decision-making processes would include the energy sector, and this is one way that the CBDcould directly impact wind energy decisions.

The CBD has joined forces with four other biodiversity-related conventionsto explore the inter-linkages between the issues each addresses, and the potentialcomplementary aspects of their monitoring and implementation processes.43 At COP8 in March 2006 in Brazil, the CBD welcomed the revised joint work programme withthe CMS (2006-2008). To the extent that the joint work programme results in the

incorporation of CMS initiatives into national biodiversity strategies and action plans,it could provide an entry point for CMS guidelines on migratory species and windfarms.

Ramsar Convention on Wetlands(Ramsar Convention, 1971)

The Ramsar Convention provides the framework for national action andinternational cooperation for the conservation and wise use of wetlands and theirresources. It is the only global environmental treaty that deals with a particularecosystem. Parties to the Convention are spread geographically across the globe.44This global coverage is available because the definition of wetlands used by the

Ramsar Convention is very broad, and this definition includes swamps and marshes,lakes and rivers, wet grasslands and peat lands, oases, estuaries, deltas and tidal flats,near-shore marine areas, mangroves and coral reefs, and human-made sites, such asfish ponds, rice paddies, reservoirs, and salt pans.45

Although the Ramsar Convention may be viewed primarily as a habitat

conservation treaty, the fundamental importance of wetlands as habitats for waterfowlis considered in the Preamble, and the international importance of wetlands towaterfowl is one of the key criteria for designating wetlands for protection.46According to the treaty, if a listed wetland is deleted or restricted in the national

art 9, which states explicitly in the chapeau that ex-situ measures serve to complement in-situmeasures.40 CBD, art 14: Impact Assessment and Minimizing Adverse Impacts.41 CBD, art 6(b).42 CBD, art 10(a).43See Joint Web Site of the Biodiversity Related Conventions,available at,http://www.biodiv.org/cooperation/joint.shtml. The five biodiversity-related conventions are theConvention on Biological Diversity (CBD), the Convention on Conservation of Migratory Species(CMS), the Convention on International Trade in Endangered Species of Wild Fauna and Flora(CITES), the Ramsar Convention on Wetlands (Ramsar Convention) and the World HeritageConvention (WHC).44See Ramsar Convention website, available at, http://www.ramsar.org/.45 Ramsar Convention, art 1.1, available at, http://www.ramsar.org/key_conv_e.htm. See also id.46 Ramsar Convention, art 2.1.


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interest, compensation for any loss to wetland resources should be made, in particularfor the protection of waterfowl.47 Parties to Ramsar must endeavour to increase thepopulation of waterfowl on appropriate wetlands.48

Bern Convention on the Conservation of E uropean Wildlif e and Natural H abitats(Bern Convention, 1979)

The aim of the Bern Convention is to ensure the conservation of wild flora andfauna and their natural habitats and to protect endangered migratory species throughcooperation between contracting parties. Although the Bern Convention is primarilyan instrument for the conservation of European biodiversity, it counts as parties four

African nations,49 and this agreement considers the protection of migratory species.50

In 2004 the Standing Committee of the Bern Convention adopted arecommendation,51 which recalls both CMS Resolution 7.5 and EUROBATSResolution 4.7, and recommends that parties take appropriate measures to minimize

the potential adverse effects of wind turbines on wildlife.52 The recommendation alsoasks parties to improve their understanding of the impact of wind farms on wildlife byinvolving the wind energy sector.53 Observer states also are invited to take note ofand implement the recommendation.54

Agreement on the Conservation of Small Cetaceans of the Bal tic and Nor th Seas

Convention for Cetaceans(ASCOBANS, 1992)

ASCOBANS was concluded under the auspices of the CMS, but it is a free-standing international agreement. The agreement covers all species, subspecies orpopulations of small cetaceans in the Baltic Sea and North Sea, with the exception of

the sperm whale. The area covered by the agreement consists of the marineenvironment of fifteen Range States, including the European Community, around theshores of the Baltic and North Seas. The parties to the agreement have agreed toextend the coverage area to cover parts of the North Atlantic and to incorporate waters

adjacent to Ireland, Portugal, and Spain. The extension will close the gap for somespecies of small cetaceans between the ASCOBANS and its sister agreement, the

Agreement on the Conservation of Cetaceans of the Black Sea, Mediterranean Sea,and Contiguous Atlantic Area (ACCOBAMS).55

47 Ramsar Convention, art 4.2.48 Ramsar Convetion, art 4.4.49 Burkina Faso, Morocco, Senegal and Tunisia.50See information on the Bern Convention on the Council of Europes website,available at,http://www.coe.int/DefaultEN.asp.51 Recommendation No. 109 (2004) on minimising adverse effects of wind power generation onwildlife: advises contracting parties to take appropriate measures to minimise the negative impact ofwind turbines in wildlife,available at, http://www.coe.int/.52Id.53Id.54 Observer states include Algeria, Belarus, Cape Verde, the Holy See, Kazakhstan, Kyrghystan,Mauritania, Tajikistan, Turkmenistan and Uzbekistan. See Documents of the Bern Convention,available at, http://www.coe.int/.55See the ASCOBANS webpage, available at, http://www.cms.int/species/ascobans/asc_bkrd.htm. Fora discussion of ACCOBAMS, see the following section of this paper.


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ASCOBANS includes a Conservation and Management Plan that describes theconservation, research, and management measures that should be applied by theparties to the agreement. Paragraph 1 of the Plan requires parties to work towards thereduction of activities which may affect the food resources of the cetaceans coveredby the agreement, and to prevent other significant disturbances, especially those of anacoustic nature.56 While no formal text has been adopted yet by the parties, concerns

over the effects of noise on cetaceans have been expressed. 57 Wind farms operate inmarine areas covered by a number of the parties to the ASCOBANS agreement, andfurther elaboration of the Plan could affect future offshore wind farm development.

Agreement on the Conservati on of Cetaceans of the Bl ack Sea, Mediterr anean Sea,

and Contiguous Atlantic Ar ea(ACCOBAMS, 1996)

ACCOBAMS, another of the agreements concluded under the auspices of theCMS, applies to all cetaceans that have a range that lies entirely or partly within thearea covered by the agreement or that accidentally or occasionally frequent that area.

Unlike ASCOBANS, ACCOBAMS protects both large and small cetaceans, includingthe sperm whale, the fin whale, and the long-finned pilot whale.

The area covered by the agreement encompasses the Black Sea, theMediterranean Sea, and the Atlantic coasts of Morocco and Portugal. There aretwenty-eight Range States included in this area. It is important to note that

membership in the agreement is also open to non-coastal or third party States whosevessels are engaged in activities that may affect cetaceans within the area covered bythe agreement.58

While the primary focus of ACCOBAMS is the deliberate and incidental

taking of cetaceans in the area by fishing vessels, its overall aim is to conserve allcetaceans in the areas waters by reducing threats to their existence. To this end,parties to ACCOBAMS are obligated to cooperate in the creation and maintenance ofa network of cetacean conservation areas.59 These protected areas are to be

established within the framework of the Convention for the Protection of theMediterranean Sea against Pollution60 or within the framework of other appropriate

instruments.61

Afr ican-Eurasian Waterbird Agr eement(AEWA, 1995)

Developed under the auspices of the CMS, like ASCOBANS and

ACCOBAMS, AEWA is an independent international treaty. AEWA covers 235species of birds ecologically dependent on wetlands for at least part of their annual

56 ASCOBANS, Annex, 1, available at, http://www.cms.int/species/ascobans/asc_text.htm.57 Resolution n. 5: Effects of noise and of vessels, Meeting of the Parties at Esbjerg, Denmark, Aug200358See websites for both ACCOBAMS, available at, http://www.accobams.org/and the overarchingCMS agreement, available at, http://www.cms.int/species/accobams/acc_bkrd.htm.59 ACCOBAMS, art II.1, available at, http://www.cms.int/species/accobams/acc_text.htm.60 Otherwise known as the UNEP Barcelona Convention. The relevant protocol to this Convention iscalled Protocol concerning Specially Protected Areas and Biological Diversity in the Mediterraneanwhich was adopted on 10 June 1995. The protocol is available at,http://www.unepmap.org/Archivio/All_Languages/WebDocs/BC&Protocols/SPA95_eng.pdf.61 ACCOBAMS, Annex II 3, available at, http://www.cms.int/species/accobams/acc_cp.htm


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cycle over an area of 117 countries from Europe, parts of Asia and Canada, theMiddle East, and Africa. It provides for coordinated and concerted action to be takenby the Range States throughout the migration system of the waterbirds to which itapplies.62

The fundamental principles of the agreement require parties to take

coordinated measures to maintain migratory waterbird species in a favourableconservation status or to restore them to such a status on the basis of the precautionaryprinciple.63 The Action Plan accompanying the agreement64 specifically requiresparties to promote high environmental standards in the planning and construction ofstructures and to consider steps to minimize the impact of structures already in

existence.65 Parties also should endeavour to take measures to limit the level ofthreat caused by human disturbances. Appropriate measures might includetheestablishment of disturbance-free zones in protected areas where public access is notpermitted.67

Protection and Conservation of Habitats

Most biodiversity-related agreements or provisions consider the protection andconservation of habitats as critical to ensuring against biodiversity loss. Even wherethe preservation of habitats is not the primary aim of an agreement, it is used as a toolfor the protection and conservation of species.

Convention on Bi ological Diversity(CBD, 1992)

The conservation of habitats is provided for in article 8 (In-situ Conservation)of the CBD. One of the key tools for achieving the in-situ conservation of

biodiversity is the establishment of a system of protected areas.68 Where necessary,parties are to develop guidelines for the selection, establishment, and management ofprotected areas,69 and they must regulate the conservation and sustainable use ofbiological diversity whether inside or outside the protected area.70 Parties have a duty

to promote sustainable practices in areas adjacent to protected areas to guard againstspillover effects.71

CBD COP decision VII/2872 on protected areas (in tandem with decisionVII/573 on marine and coastal biodiversity) reaffirms the importance of protectedareas to attaining the objectives of the convention. At its eighth meeting in Curitiba,

62See AEWA website, available at, http://www.unep-aewa.org/.63 AEWA, art II, available at, http://www.unep-aewa.org/documents/agreement_text/eng/agree/agree_text.htm.64 AEWA, Annex 3, available at, http://www.unep-aewa.org/documents/agreement_text/eng/agree/ag_a3.htm.65 AEWA, Annex 3, item 4.3.5.67Id.68 CBD, art 8(a).69Id. at 8(b).70Id. at 8(c).71Id. at 8(e).72 CBD COP 7 decision VII/28: Protected areas (articles 8(a) to (e)),available at,http://www.biodiv.org/decisions/default.asp.73 CBD COP 7 decision VII/5: Marine and coastal biological diversity,id.


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Brazil in March 2006, the COP re-affirmed the importance of the protected areasprogramme of work and recognised the need for adequate technical, institutional andfinancial capacities for the implementation of the programme.74

Ramsar Convention on Wetlands(Ramsar Convention, 1971)

The main aim of the Ramsar Convention is habitat protection, and morespecifically, the conservation and wise use of wetland habitats.75 Wise use is definedas sustainable utilization for the benefit of mankind in a way compatible with themaintenance of the natural properties of the ecosystem.76 Sustainable utilization isunderstood to mean human use of a wetland so that it may yield the greatest

continuous benefit to present generations while maintaining its potential to meet theneeds and aspirations of future generations.77

Wetlands are protected through a listing process. Parties designate wetlands tobe listed on the basis of their international significance. International significance is

determined using the following criteria: ecology, botany, zoology, limnology, orhydrology.78 Changes to listed wetlands must be reported, including those resultingfrom technological developments, pollution, or other human interference.79 Wherepossible, parties must compensate for losses to wetland resources.80

Bern Convention on the Conservation of European Wildlif e and Natur al H abitats(Bern Convention, 1979)

The Bern Convention, is essentially a European treaty, and it is implementedthrough the European Communitys (EC) Birds81 and Habitats82 Directives. TheBirds Directive provides for habitat protection by establishing the requirement for EC

Member States to designate special protection areas (SPAs).83 The correspondingareas in the Habitats Directive are known as special areas of conservation (SACs).84The combination of SPAs and SACs across Europe make up the Natura 2000network, which is considered the cornerstone of EU nature protection policy. 85

Exceptions exist in both directives which allow for development to occur within theNatura 2000 protection network.86

74See CBD COP 8 decision VIII/24: Protected areas,available at,http://www.biodiv.org/decisions/default.asp?m=cop-08.75 Ramsar, art 3.1, available at, http://www.ramsar.org/key_conv_e.htm.76See Guidelines for the Implementation of the Wise Use Concept, first adopted as an annex toRecommendation 4.10 of the 4th Meeting of the Conference of the Contracting Parties (Montreux,Switzerland, 1990), available at, http://www.ramsar.org/key_guide_wiseuse_e.htm.77Id.78 Ramsar, art 2.2.79Id. at art 3.2.80Id. at art. 4.2.81 Directive 79/409/EEC, available at, http://europa.eu.int/comm/environment/nature/home.htm.82 Directive 92/43/EEC, id.83 Birds Directive, art 4.84 Habitats Directive, art 4.4.85See European Commission DG Environment website,available at,http://europa.eu.int/comm/environment/nature/mission_statement/index_en.htm.86 Habitats Directive, arts 6 and 7.


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For those activities listed in Appendix I to the convention, parties mustestablish environmental impact assessment procedures that permit publicparticipation.98 The assessment documentation must be prepared as set out inAppendix II to the convention.99 The list of activities in Appendix I includes majorinstallations for the harnessing of wind power for energy production (wind farms).100The assessment documentation must include at a minimum the following information:

(a) A description of the proposed activity and its purpose;

(b) A description, where appropriate, of reasonable alternatives (forexample, locational or technological) to the proposed activity and also the

no-action alternative;

(c) A description of the environment likely to be significantly affected bythe proposed activity and its alternatives;

(d) A description of the potential environmental impact of the proposedactivity and its alternatives and an estimation of its significance;

(e) A description of mitigation measures to keep adverse environmentalimpact to a minimum;

(f) An explicit indication of predictive methods and underlyingassumptions as well as the relevant environmental data used;

(g) An identification of gaps in knowledge and uncertainties encounteredin compiling the required information;

(h) Where appropriate, an outline for monitoring and managementprogrammes and any plans for post-project analysis; and

(i) A non-technical summary including a visual presentation asappropriate (e.g., maps, graphs).101

Even where wind farm development is not deemed a major installation, itstill may be subject to an environmental impact assessment by virtue of its size,location, or effect.102 For the purposes of this analysis, the proximity of a project toan international border should be taken into consideration.103 While environmental

impact assessments are to be applied at the project level, parties should endeavour toapply the same measures to policies, plans, and programmes.104

98 Espoo Convention, art 2.2, available at, http://www.unece.org/env/eia/eia.htm#appendix1.99Id.100Id. at Appendix I, item 22.101Id. at Appendix II.102Id. at art 2.5 and Appendix III.103Id. at Appendix III.104Id. at art 2.7.


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IV. Conclusions and Recommendations

International agreements to protect biodiversity and to reduce greenhouse gasemissions all pursue similar objectives securing a sustainable future and reducingthe impact of humans on natural values. However, the interpretations of theseagreements can lead to contradictory results, particularly in the case of wind energy

development. In some instances, there has been a disproportionate focus on the short-term negative impacts of wind development on biodiversity and an inadequate focuson the long-term benefits of wind energy in reducing the effects of climate change one of the largest threats to biodiversity. In addition, in some cases, the impacts ofwind energy both positive and negative have been viewed in isolation and have

not been compared to the far more serious environmental impacts of producingelectricity from other energy sources, particularly fossil fuel sources, including coal,oil, and natural gas, as well as nuclear power and large-scale hydropower plants.

Increased efforts should be focused on assuring a balanced approach that seeks

to harmonize the goals of protecting biodiversity and reducing greenhouse gasemissions. This approach should seek to mitigate the negative, local impacts of windturbines on biodiversity while avoiding policies that create serious impediments towell-designed and carefully sited wind farms. Without such a balanced approach,policies designed to protect biodiversity may actually contribute to continued relianceon conventional electric generating technology and the consequent aggravation of

global climate change and pollution on wildlife and habitats on a large scale.

In pursuit of these objectives, wildlife experts, environmental organizations,and wind developers should collaborate in evaluating the issues raised by biodiversityagreements for the development of wind energy resources105 and in developing

guidelines to govern development. The following specific actions should beconsidered:

Planning:

National and regional authorities should develop and use GeographicInformation System (GIS) tools to map environmentally sensitive areas as wellas areas suitable for wind farm development and should make the maps readilyaccessible to the wind industry;

o The planning process should be used to pinpoint specific locations ofecological concern and to demonstrate the sensitivities of particularlocations to development;

o Based on this mapping, national and regional authorities, followingpublic consultation, should designate areas suitable for wind farmdevelopment (go-areas) in their planning (as implemented inDenmark) rather than focusing solely on no-go areas;

105 In 2005 the transportation and energy (DG TREN) and environment (DG ENV) directorates at theEuropean Commission created an ad hoc working group on wind energy and biodiversity. The group iscomprised of industry, governmental and non-governmental representatives. In August 2005, theEuropean Wind Energy Association (EWEA), the groups wind industry representative, issued amemorandum on findings, recommendations and conclusions. Copy on file with authors.


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o The absence of such maps in the near-term should not be used as abarrier to development given the substantial time and effort requiringto conduct such mapping work.

Research:

Research priorities relating to the environmental impacts of wind turbines andsuccessful mitigation measures should be established on a collaborative basisby international agencies, National and State governments, academic experts,

environmental organizations, and the wind industry, and this cooperative effortshould result in a prioritized research roadmap.

Increased funding should be made available to pursue the proposed researchroadmap, and the results of such research should be peer-reviewed and madepublicly available.

Development of Guideli nes:

The development of new environmental assessment guidelines for wind farms,including the guidelines under development pursuant to Resolution 7.5 of the

Convention on Migratory Species and Wild Animals (CMS) and Resolution

4.7 of the Agreement on the conservation of Populations of European Bats,should:

o Involve early and continuing input from all relevant stakeholders,including state regulatory experts, knowledgeable members of the

environmental community, independent consulting biologists withexpertise in the field, and the wind industry;

o Avoid vague wording and general considerations based on limited sitedata;

o Take advantage of the most up-to-date information about wind powerdevelopment and its impact on wildlife and avoid reliance on studiesbased on outdated wind technology;

o Rely on an evidence-based approach that focuses on what is knownand clarifies the issues requiring further study;

o Incorporate a mitigation/best practices approach rather than a zero-tolerance approach for reducing potential adverse impacts of windfarms, except where endangered or threatened species are involved. Amitigation/best practices approach is appropriate in recognition of the

comparative benefits of wind farms compared to fossil fuel generationin reducing greenhouse gas emissions and the related adverse climate

change impacts on the ecosystem;o Implement reasonable requirements for pre-construction and post-

construction monitoring that:

Avoid requirements for pre-construction monitoring atcomparative reference sites in view of the limited benefits and

high costs of such requirements;

Recognize that excessive site-specific studies can render aparticular project as infeasible and that certain studies are more

appropriately directed as part of a broad-scale research agenda(rather than as part of a project -specific permit process) and

pursued through a government-industry collaboration.


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o Eliminate requirements for assessment of impacts on certain species ifgeneric research has demonstrated no (or minimal) adverse impactsand the impacts are not site-specific; and

o Seek to limit the adverse impact on projects already approved bynational authorities;

Any guidelines should contain provisions for periodic updating on the basis ofnew research and monitoring results.

The development of biodiversity guidelines affecting wind powerdevelopment must be viewed in the context of multiple national, regional, andinternational commitments to preserve biodiversity, combat climate change, and toincrease renewable energy use. With a balanced approach, States can ensure thatthey comply with their international obligations to preserve biodiversity, while

developing clean, efficient and renewable sources of energy and reducing greenhousegas emissions.